Almost end times for Trump trial spectacle but there's still room for fireworks: 3 things to watch

In a column for National Review on Wednesday, I observe that the ongoing testimony of Michael Cohen, Donald Trump’s former lawyer and self-described "fixer," is a two-edged sword for the former president’s defense to the charges brought by Manhattan’s elected Democratic district attorney, Alvin Bragg.

Trump lawyer Todd Blanche, who is conducting the cross-examination, needs to do enough damage to Cohen’s credibility – between Cohen’s perjury and frauds, some ridiculous elements of his story (like why he covertly recorded Trump), and his obsessive bias against Trump – that the defense can argue to the jury that it would be irresponsible to convict someone based on Cohen’s testimony.

On the other hand, Blanche has to bear in mind that Cohen is in this central role because he was Trump’s guy. The things that made Cohen an unsavory character are the things that Trump found useful about him. And even when Trump was president and Cohen was under investigation for tax and bank fraud by the Trump Justice Department, Trump was saying nice things about Cohen right up until he cooperated with federal prosecutors in the Southern District of New York. Hence, the more Blanche hammers Cohen, the more the jury may wonder why Trump kept him around for a dozen years.

MICHAEL COHEN ONCE SWORE TRUMP WASN'T INVOLVED IN STORMY DANIELS PAYMENT, HIS EX-ATTORNEY TESTIFIES

It is undoubtedly true that, to convict Trump, the jury must believe Cohen’s uncorroborated testimony that Trump knew – from the Trump Organization’s then-CFO, Allen Weisselberg – the details of how Cohen was going to be paid.

Prosecutors have projected the illusion that they’ve offered tons of evidence to corroborate Cohen. But they have only corroborated elements of the story that are not incriminating and not in (much) dispute. On the disputed issue of Trump’s state of mind, there is no support for the key Weisselberg story. It’s just Cohen’s word.

As I’ve maintained, Trump’s attorneys need to resist attacking this issue too aggressively. The non-disclosure agreements (NDAs – pejoratively labeled "hush money" by much of the media) are legal. Ergo, Trump shouldn’t worry too much about being tied to how they were recorded in the Trump Organization’s books. So sure, make the point that Trump did not get into such granular accounting details (especially once he was president and had far weightier responsibilities); but don’t make it look like the defense is afraid of the NDAs as if they were illegal.

I expect three other things on Thursday (and as the trial continues into next week):

1. The "retainer" agreement

Bragg’s allegation that Cohen’s invoices are false (as Cohen testified they were) is based on Cohen’s testimony that (a) there was actually no retainer agreement, and (b) the monthly payments of $35,000 were really for reimbursement for the Stormy Daniels NDA in 2016, not – as the invoices suggest – for ongoing legal work in 2017.

This story is collapsing. 

Retainers do not have to be in writing, so the fact that there isn’t a written retainer does not settle the question of whether Trump retained Cohen as a lawyer after 2016. Cohen has now admitted that it was agreed that he could represent himself in 2017 as the president’s private lawyer, and he admits that he did legal work for Trump in 2017-18 – not a lot, but some. Clients often have a retainer agreement, not to pay for ongoing work, but to pay for the lawyer’s availability if something comes up. And it’s obvious that the 2017 installment payments, which totaled $420,000, were about more than the $130,000 for the Stormy NDA — they included a bonus, which, regardless of what Cohen says, could be for past work or future availability. 

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To summarize, then: Cohen was holding himself out as Trump’s lawyer throughout 2017, he was available to work for Trump whenever asked, and he did in fact do lawyer work for him in 2017-18. And the Trump Organization knew it was paying for more than the Stormy Daniels NDA. So how could it be fraudulently false for the Trump org CFO to refer to payments to Cohen as pursuant to a retainer? Cohen did the things a retained lawyer does.

2. Robert Costello

Costello is a savvy New York defense lawyer who represented Cohen at the start of the federal investigation. He has been released from his attorney-client confidentiality obligation (because Cohen waived confidentiality when he told the feds about his discussions with Costello). On Tuesday, Costello testified before a House committee, asserting that Cohen’s testimony was rife with lies – a claim Costellos says he can back up with emails, texts, etc. Costello also testified to that effect in the grand jury.

 I expect Blanche will use Costello’s House and grand jury testimony in attacking Cohen on cross-examination. 

Could Costello end up being a witness if there is a defense case? Up until now, I’ve surmised that there would be no defense case, and that Team Trump would rely on the weakness of the prosecution’s case. But Costello is an option for the defense (unless Team Trump decides it has sufficiently demolished Cohen’s credibility during cross-examination). 

3. Federal Campaign Finance

Team Trump should renew its request to call former FEC official Bradley Smith as an expert witness in the defense case to explain why NDAs are not actionable campaign expenditures under federal law. Judge Merchan has previously indicated he would not permit such expert testimony, rationalizing that only the court should instruct the jury on the law. But Merchan has let Cohen and David Pecker explain to the jury that they believed the NDAs violated federal law. 

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Especially given that Bragg has no authority to enforce federal law, and Merchan has no expertise in it, shouldn’t the jury hear from at least one person who actually knows something about the subject?

The end of the trial is nearing, but there are still twists and turns to play out.

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